DATTATRAYA KASHINATH CHHATRE Vs. VITHALDAS BHAGWANDAS DARBAR

JUDGEMENT

(1.) THIS is an appeal raising a question in execution. In the year 1936 the respondent obtained a decree against the appellants for a sum of Rs. 81,000 odd, which was made payable by instalments. On November 19, 1937, the decree-holder made an application to the Court, which is exhibit 1, asking the Court to record an adjustment, the terms of the adjustment being that in satisfaction of the decree, the decree-holder was to take certain immoveable properties. At the same time an application was made to the Court for sanction of the compromise on behalf of defendants Nos. 3, 4 and 5, who were minors. Notices were issued, but eventually on February 24, 1038, the application to record the compromise was dismissed for want of prosecution. The present darkhast was issued on February 7, 1939, and the learned First Class Subordinate Judge of Bijapur has held that it is entitled to proceed. Hence this appeal.

(2.) THE contention of the appellants is that the application of November 19, 1937, was a certification of an adjustment under Order XXI, Rule 2(1), Civil Procedure Code, 1908, which became binding immediately on presentation, that the fact that it was not recorded by the Court is irrelevant, and that it was not competent for the decree-holder to withdraw the application. THE argument would, I think, have been the same even if the judgment-debtor had agreed that the application should be withdrawn; the appellants' contention being that as soon as such an application is presented to the Court, that disposes of the decree, which cannot afterwards be executed.

(3.) IN my opinion, therefore, the adjustment not having been recorded, the decree stands.